KARAN SINGH Vs. SADHO RAM

JUDGEMENT

(1.) This Execution First Appeal (No. 330 of 1931) is connected with Execution First Appeal No. 450 of 1931. Both appeals are by a judgment-debtor and arise out of proceedings in execution of a final decree for sale. In order to appreciate the points in controversy between the parties, it is necessary to state the facts in some detail. Sadho Ram, the decree-holder,, respondent obtained on the basis of a mortgage-deed a preliminary decree for sale on 27 August 1928, against Thakur Haran Singh, the appellant before us and his minor son Mahendra Singh who was impleaded as a defendant under the guardianship of his mother Mt. Hastun. A final decree for sale was passed in favour of the decree-holder against the said judgment-debtor on 4 May 1929. On 11 June 1929, the decree-holder filed an application for execution of the decree.

(2.) The application was accompanied by a statement containing the particulars mentioned in Order 21, Rule 66(3), Civil P.C. It was stated in that statement by the decree-holder that the property to be sold, was in possession of the judgment- debtors and his ancestors since the year 1860 and was ancestral property. In order to satisfy itself as to the accuracy of this statement of the decree-holder the execution Court called for a report from the Collector. The Collector reported that the property was ancestral property and accordingly in pursuance of the provisions of Section 68 of the. Code and Government Notification No. 1887/ 1/238 dated 7th October 1911, the execution was transferred to the Collector. An inquiry was then instituted by the sale officer in order to draw up the proclamation of sale. One of the particulars entered in the sale proclamation is the estimated value of the property and the sale officer called for a report from the Tahsil as to the value of the property to be sold. The report was that the value of the property included in the proclamation of sale was Rupees 20,896. The decree-holder objected to this estimated value and the sale officer fixed the value of the property at Rs. 18,000. This valuation was accepted by the decree-holder. But the judgment-debtor objected to the valuation and after further inquiry the estimated value of the property was fixed at Rs. 25,444. Then on 7 February 1931, the decree-holder filed an application stating that the property sought to be sold was non-ancestral and as such could not be sold by the Collector and that he did not propose to proceed with the application for execution. The statement of the decree-holder that the property was non-ancestral was diametrically opposed to the statement contained in the particulars submitted by the decree-holder in the execution Court in pursuance of the provisions of Order 21, Rule 66(3). However on this application the proceedings before the Collector terminated and the record was sent back to the civil Court. Three days after, viz., on 10 February 1931, the decree-holder put in a second application for execution before the execution Court (civil Court) and in the statement under Order 21, Rule 66, described the property covered by the decree for sale as non-ancestral property and the estimated value of the same to Rupees 10,000. Notices under Order 21, Rule 66 were issued to the judgment-debtors fixing 25 February 1931 for the hearing of the objections, if any, to the application for execution and to the statement containing the particulars prescribed by Clause (2), Rule 66. It is common ground that these notices were not served personally either on the judgment-debtor appellant before us or on Mt. Kasturi the guardian-ad-litem of the minor judgment-debtor and that the service was effected by affixation. The judgment-debtor appellant maintains that the decree-holder fraudulently got a bogus report with respect to the service of the notices made by the process server and that neither he nor Mt. Kasturi came to know of the application for execution dated 10 February 1931. We shall advert to the facts relating to service in a moment.

(3.) On 25 February 1931, the date fixed in the execution case, the judgment- debtor did not appear and the Court fixed 20 April 1931, for the sale of the property, apparently without any inquiry into the question as to whether the property was ancestral or non-ancestral. The attention of the Court was not drawn by the decree-holder either to his earlier statement that the property to be sold was ancestral property or to the report of the Collector, that was to the same effect, and the Court therefore accepted the statement of the decree-holder that the property was non-ancestral property and directed the same to be sold as such by the Amin of the Court. On 14 Aprill931, the judgment-debtor appellant filed an objection to the application for execution dated 10 February 1931, and the statement of particulars of the property to be sold appended to that application. He alleged that by fraud of the decree-holder, he had no notice of the date fixed in the execution case and therefore could not put forward objections to the particulars submitted by the decree-holder. He maintained that the property sought to be sold was ancestral property and therefore could not be sold by the civil Court and that the value of the same was not less than Rs. 30,000 and that the statements to the contrary made by the decree-holder was false. He also prayed that pending the decision of the objections filed by him the sale fixed for 20 April 1931 be postponed. The Court refused to accede to the prayer for the postponement of the sale and the property was actually sold on 24 April 1931. The decree-holder purchased the property for Rs. 10,000 at the auction-sale. Thereafter on 10 May 1931, the objections filed by the judgment-debtor were heard and dismissed on the ground that the objections could be entertained only before the sale and as the sale had already taken place the objections could not be maintained. Execution First Appeal No. 450 of 1931 is directed against this order of 16 May 1931.